Can Houston-area students be punished for protesting?

Austin High School students protest the ICE detention of Dennis Rivera, a student from their school on Wednesday, Feb. 14, 2018, in Houston.

Austin High School students protest the ICE detention of Dennis Rivera, a student from their school on Wednesday, Feb. 14, 2018, in Houston.

Photo: Elizabeth Conley, Houston Chronicle

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Austin High School students protest the ICE detention of Dennis Rivera, a student from their school on Wednesday, Feb. 14, 2018, in Houston.

Austin High School students protest the ICE detention of Dennis Rivera, a student from their school on Wednesday, Feb. 14, 2018, in Houston.

Photo: Elizabeth Conley, Houston Chronicle

Can Houston-area students be punished for protesting?

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Thousands of high and middle school students across the country have walked-out of their classes to demonstrate for stricter gun laws after 17 people were shot and killed at Stoneman Douglas High School in Parkland, Fla. Feb. 14.

Some school administrators welcomed the protests, as long as students didn't leave school property and demonstrated during lunch. Others, such as Needville ISD's superintendent, threatened to suspend any student who walked out or otherwise protested.

Balancing students' rights to free speech with the need to keep schools functioning has been addressed through various court cases, most notably in 1969 with the Supreme Court's Tinker v. Des Moines Independent Community School District decision.

That decision, and others following it, specified what types of student protests are protected and which can result in punishment.

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Yes, if the protest is found to "materially and substantially disrupt the work and discipline of the school."

The Supreme Court ruled in 1969 that public schools are an appropriate place to exercise symbolic speech. Schools can't punish students for actions such as wearing a shirt with a political message, or wearing a black armband to symbolize opposition to war as was the case in Tinker.

School administrators can punish students for any protest action that disrupts classwork, involves "substantial disorder" or invades the rights of others. Other types of speech including slander, libel or speech that incites violence also are not protected.

"I think certainly no one would argue walking out of class while school is in session is disruptive and will not be legally protected," said Mike Hiestand, senior legal consultant to the Student Press Law Center. "If they're going to take the stand, they need to be prepared to take responsibility for it."

How can school districts punish students who disrupt school by protesting or walking out?

Most districts detail how students would be punished for disrupting school or taking an unexcused absence in their student codes of conduct.

Spring ISD, for example, punishes students with in-school suspension for disrupting class, and Spokeswoman Karen Garrison said that would be the same punishment given to students who disrupt class to protest.

Hiestand, however, said schools cannot tack on additional punishments because a student is protesting. For example, if a school district typically punishes students who disrupted class with three days of in-school suspension, it would be illegal for that district to punish a student who disrupts class to protest with three days of out-of-school suspension.

"To go beyond (the regular punishment) and say this particular speech is going to get you extra penalties, that's a real problem. That's illegal," Hiestand said. "You can't allow extra penalties because of the speech involved."

Is one type of student speech more protected than others?

Political messages are more protected than regular speech, as clarified in a 2007 Supreme Court decision in the Morse vs. Frederick case. A student was suspended for 10 days after holding up a banner that read "bong hits for Jesus" at a school event.

Justices ultimately ruled against the student, but Justice Samuel Alito wrote in the majority opinion that the students' speech would have been protected if it had been more political.

"Had the student said 'legalize pot now' instead of 'bong hits for Jesus,' had it been a political message, then he would have been entitled to greater First Amendment protection, not less," Hiestand said.

Why are high school students protesting now, anyway?

Thousands of students throughout the country have walked out of their classes at least once since 17 people were shot and killed at the Stoneman Douglas High School in Parkland, Florida on Feb. 14.

Most of those protesting are pushing for stricter gun laws, although their specific demands regarding gun control are not clear.